After the Revolution, the bourgeoisie constructed a judicial system directed against popular illegality. Capitalism separated workers from products more than the artisanal production system so allowing a stronger protection of bourgeois property from depredations. Depredations which had also come from state agents in the money taken by customs officers. This was mixed in with the appropriation of property by workers in the chaotic circumstance in large commercial ports. The bourgeoise created two kinds of justice one for itself and one for the proletarianised plebeians. It did so in order to permit some kinds of fraud and criminalise others. The permitted frauds were the use of spies, informers, and provocateurs, against working class groups and delinquents. The forbidden frauds were all those forms of plebeian illegality mentioned.
The construction of bourgeois legality was the time of the definition of the delinquent as the enemy of society, as the destroyer of the social contract (discussed by Foucault in earlier lectures in this series). It was also the time of the moralisation of crime and the isolation of the criminal as a category, for which prisons was at the centre, along with the development of police forces, the use of armies to soak up delinquency, and colonisation (presumably with regard to deportation or transportation of criminals).
The development of bourgeois legality also gives new legal rights to workers with regard to the contractual definition of employment and the receipt of salary. The implication is such regularisation of the status of employee with a right to wages was part of the bourgeois world along with criminalisation of forms of illegality previously tolerated and even welcomed by the bourgeoisie. The plebeian resistance to legality through autonomous organisation, smashing of machines, ignoring civil marriage, and political resistance carried on in anarchist ideology.
Comments on the above.
Compared with the previous lecture, Foucault seems a bit closer to Marxism and a bit further from the classical liberal analysis of state parasitic class power. One mode can be sussed to expand upon and reinforce the other in any case, but whichever way round, the process tends to change both. From the Marxist point of view, a focus on the illegality of the capitalist class before its political triumph and its politicised use of law for appropriative purposes is a bit of a deviation from the analysis of the pure capitalist model. Exposing the non-pure behaviour of the bourgeoisie evidently has its appeal for Marxists, who have a tradition of criticising the bourgeoisie for ‘betrayal’ of its purest ideals, but the more one concentrates on the non-pure bourgeois behaviour and the less on the pure capitalist model, the more one is in the same territory as the classical liberals mentioned in comments I added to notes on the last lecture. The alternative is the popular illegality and anarchism, which has some points of contact with bourgeois suspicion of the state, as Foucault himself mentions with regard to the alliance with popular illegalities during the statist-feudal era. Anarchism also has Marxist elements, but Marx himself was in titanic conflict with anarchists, particularly Bukunin, and the kind of anarchism-popular illegality mentioned by Foucault here is difficult to accommodate to any kind of well organised Marxist movement with an ideology and a political structure. The popular illegality is itself prone to compromise with power as Foucault acknowledges, so we have a very ambiguous set of suggestions here. As with Marx , there is sometimes a hint of nostalgia for the pre-capitalist world. Though this can also be seen in some anarcho-capitalist and anarcho-conservative thinking which regards the interventionist regulatory state of the capitalist era with horror. On might think of David Friedman’s anarcho-capitalist endorsement of Medieval Iceland as known through the Eddas and the anarcho-conservative Tolkein’s Mediaevalist-Archaic world of the Lord of The Rings. The aestheticising poetic vision is significant here, as that is one way of expressing dislike of rationalist-statist modernity in which capitalists and elites have become parts of what Weber calls the ironic cage of rationality, Adorno calls an administered society, what Nozick calls demoktesis, and what Foucault calls bio-politics.
(Referring to La société punitive: Cours au Collège de France. 1972-1973. Ed. by Bernard E. Harcourt under the direction of François Ewald and Alessandro Fontana. Paris: Seuil, 2013)